Citation Nr: 1228746
Decision Date: 08/22/12 Archive Date: 08/30/12
DOCKET NO. 09-17 378 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUE
1. Entitlement to an evaluation in excess of 40 percent for a multilevel degenerative disc disease of the lumbar spine.
2. Entitlement to an initial evaluation in excess of 10 percent for left lumbar radiculopathy.
REPRESENTATION
Veteran represented by: National Association of County Veterans Service Officers
ATTORNEY FOR THE BOARD
K. Osegueda, Law Clerk
INTRODUCTION
The Veteran served on active duty in the United States Army from October 2003 to March 2004.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying, inter alia, the Veteran's claim to an increased rating for his service-connected multilevel degenerative disc disease of the lumbar spine with left lumbar radiculopathy.
Following the June 2008 rating decision, the Veteran submitted a notice of disagreement (NOD) in September 2008. The April 2009 statement of the case (SOC), however, only characterized the issue as a multilevel disc disease of the lumbar spine and did not mention the left lumbar radiculopathy. The Veteran's May 2009 formal appeal to that SOC again referenced the entire issue, as had been previously characterized in the June 2008 rating decision. In December 2009, the RO granted a separate 10 percent disability rating for left lumbar radiculopathy, effective February 2008, which corresponds to the date of receipt of the Veteran's increased rating claim. As the evaluation assigned for the Veteran's service-connected back disability was originally characterized as including left lumbar radiculopathy, the Board finds that the now separate issue of entitlement to an increased evaluation for left lumbar radiculopathy radiclupathy is part and parcel of the issue perfected for appeal, and is appropriately before the Board for consideration.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The record indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits, per an April 2012 notice of disagreement (NOD) received after certification to the Board. The Veteran asserts that this award was based primarily on his lumbar spine disability. Given the likelihood that records held by SSA might include those pertinent to the disabilities at issue in this appeal, the Board finds that a remand for such records is warranted. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records.
Accordingly, the case is REMANDED for the following actions:
1. Contact the Social Security Administration (SSA) and request a copy of the Veteran's complete SSA disability benefits file, including any administrative decision(s) on the Veteran's application for SSA disability benefits and all of the underlying medical records. A copy of any response(s) from SSA, to include a negative reply, should be included in the claims file. All records provided by SSA should also be included in the claims file.
2. Following the above action and receipt of any additional evidence, review the file to ensure that all appropriate development actions have been completed in full. Such development action should include VA examinations if indicated by the expanded record.
3. Then, readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).